Removing the Bias of Criminal Convictions from Family Law

Abstract

What happens when a legal system reduces a person to a record of arrests and prosecutions and prioritizes that information in family court? And what are the implications when this legal system is rooted in racism; disproportionately arrests, charges, and sentences people of color; and increasingly criminalizes domestic violence survivors?

The Black Lives Matter movement brought attention to the need to expose racial injustice in areas that scholars often overlook. This Article is the first legal scholarship to examine judicial reliance on convictions in family law and domestic violence proceedings. Judges are currently provided with entire criminal histories, and statutes explicitly allow for or require family court judges to consider past criminal convictions and the probation and parole status of litigants seeking to secure custody or visitation of their children, form a family through adoption, or receive protection from domestic violence, as revealed by the research and fifty-state survey conducted for this Article.

Given the stark racial disparities that pervade the criminal legal system, the convergence of heuristics and bias profoundly impacts litigants’ lives, relationships, families, and communities. Judges’ implicit biases coupled with structural hurdles, such as the high-volume dockets of criminal and family courts, further affect adjudication and pressure parties to accept plea offers or settlements. This Article also addresses survivors’ advocates' potential objections to decreasing judicial reliance on criminal convictions and the imperative to avoid minimizing harms experienced by people of color. The Article concludes by offering a statutory framework to reform the role of criminal convictions in domestic violence and family court proceedings. The recommended statutory reforms are positioned alongside emerging expungement and vacatur laws. Without the remedy recommended in this Article, racial bias and the stigma of criminality will continue infecting family law cases, protection from domestic abuse, and caretaking relationships.

Keywords: convictions, implicit bias, family law, domestic violence, custody, adoption, foster care, collateral consequences

JEL Classification: K14, K36, K4